United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2021 Decided July 13, 2021

No. 19-3094

UNITED STATES OF AMERICA,

APPELLEE

v.

MORRIS GEMAL JOHNSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cr-00125-1)

Virginia A. Williamson argued the cause for appellant. 

With her on the briefs were Adam Margulies, Kevin King,

Alexander Schultz, and Nicole Antoine.

Nicholas P. Coleman, Assistant U.S. Attorney, argued 

the cause for appellee. With him on the brief was Elizabeth 

Trosman, Assistant U.S. Attorney.

Before: SRINIVASAN, Chief Judge, ROGERS, Circuit 

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.
2

SRINIVASAN, Chief Judge: Morris Gemal Johnson was 

convicted of multiple counts under federal and D.C. law for 

making, possessing, and smuggling firearms or destructive 

devices. The bulk of those charges concerned two improvised 

explosive devices found in Johnson’s home. We hold that his 

two federal firearm possession convictions are “multiplicitous” 

of—i.e., impermissibly duplicative of—his two federal firearm 

manufacturing convictions, in violation of the Double Jeopardy 

Clause. We further hold that his two D.C. law convictions for 

possessing a weapon of mass destruction are multiplicitous of 

each other. We also remand his claim that he received 

constitutionally ineffective assistance of trial counsel in 

connection with his decision to reject the government’s offer 

of a plea agreement.

I.

A.

On January 23, 2014, agents from the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives (ATF) executed a search 

warrant at Johnson’s home. The agents recovered explosive 

powder and various other items associated with the production 

of explosive devices. They also found cardboard boxes 

containing several 37-millimeter ammunition shells—most of 

them empty—with caps and primers on them. (Primers 

detonate explosive material around them when hit with force.) 

One of those 37-millimeter shells had been assembled as an 

improvised explosive device (IED) using, among other things, 

explosive powder, hobby fuse, and a primer. ATF Agent 

Richard Campbell was the agent who looked through the boxes 

and disassembled and later examined the IED.

In September 2017, while reviewing photos of the 

evidence with the prosecutor, Agent Campbell “saw in those 
3

photographs additional items that [he] had not examined yet” 

within the seized boxes. Trial Tr. 332:20–22, J.A. 205. The

prosecutor asked Campbell to review that evidence, and in 

doing so, Campbell discovered that one of the 37-millimeter 

shell casings left in the boxes “had some weight to it and 

appeared to be loaded with something.” Id. at 340:4–5, J.A. 

213. Campbell disassembled and examined it, concluding that 

it, like the shell casing discovered on the day of the search of 

Johnson’s home, had been converted into an IED.

In January 2018, a grand jury returned the operative 

indictment in this case. The indictment contained eight counts

alleging violations of federal and D.C. law: (1) Unlawful 

Receipt or Possession of an Unregistered Firearm and 

Destructive Device, 26 U.S.C. §§ 5861(d), 5871; (2) Unlawful 

Making of a Firearm, 26 U.S.C. §§ 5822, 5861(f), 5871; (3)

Possession of a Weapon of Mass Destruction, D.C. Code § 22-

3154(a); (4) Unlawful Receipt or Possession of an Unregistered 

Firearm and Destructive Device, 26 U.S.C. §§ 5861(d), 5871; 

(5) Unlawful Making of a Firearm, 26 U.S.C. §§ 5822, 5861(f), 

5871; (6) Possession of a Weapon of Mass Destruction, D.C. 

Code § 22-3154(a); (7) Conspiracy to Smuggle Goods into the 

United States, 18 U.S.C. § 371; and (8) Conspiracy to Engage 

in the Interstate Transportation of Unregistered Machine Guns 

and Silencers, 18 U.S.C. § 371.

Of relevance to this appeal, Counts One through Three 

pertained to one of the two 37 mm shell IEDs, and Counts Four 

through Six contained parallel charges pertaining to the second 

such device. All told, there was a federal possession, federal 

manufacture, and D.C. possession charge for each of the two 

IEDs (Counts One through Six), along with two conspiracy 

charges (Counts Seven and Eight). The district court later 

asked the parties to consider whether the two conspiracy counts 
4

were duplicative, and the government subsequently dismissed 

Count Eight.

B.

Before trial, the government made Johnson a plea offer 

under which he would plead guilty on two of the federal counts 

in exchange for the government’s dropping the remaining 

charges. Johnson rejected the proposed plea agreement.

The trial took place in April 2019. During the trial, the 

defense introduced evidence about ATF Agent Campbell, the 

agent who had disassembled and examined both IEDs. The 

evidence concerned Campbell’s involvement in a case in the 

Eastern District of Kentucky in which Campbell had submitted 

an affidavit that, according to the Kentucky trial judge, “had 

grossly overstated the amount of fireworks that were visibly 

damaged.” Trial Tr. 342, J.A. 215.

Before the close of evidence in Johnson’s trial, the 

government asked the court to bar the defense from suggesting 

that Agent Campbell had tampered with evidence in Johnson’s 

case. The court permitted the defense to argue that the 

evidence had been mishandled by the government and that

Campbell was not a credible witness because of the Kentucky 

judge’s statement, but the court declined to permit any 

suggestion that Campbell had tampered with the evidence. The 

court found that there was “no record evidence” of tampering. 

Id. at 1312:19, J.A. 290. Defense counsel preserved an 

objection on the ground that a jury could reasonably infer 

tampering from the evidence.

The jury found Johnson guilty on all seven counts 

submitted to it. Johnson now appeals.
5

II.

Johnson makes four arguments on appeal. First, he 

contends that his two federal possession counts are 

multiplicitous of his two federal manufacturing counts, in 

violation of the Fifth Amendment’s Double Jeopardy Clause. 

Second, he argues that his two D.C. law convictions are 

multiplicitous of each other. Third, he urges us to find that the 

district court abused its discretion when it prevented his 

counsel from arguing that Agent Campbell had tampered with 

the evidence. Fourth, he claims that that his trial counsel 

rendered him constitutionally ineffective assistance by failing 

to advise him that his preferred defense would not be presented 

at trial.

We grant Johnson relief on first and second challenges, 

reject his third challenge, and remand for the district court to 

consider his fourth challenge in the first instance.

A.

Johnson first argues that his federal possession convictions 

(Counts One and Four) must be vacated as duplicative of his 

federal manufacturing convictions (Counts Two and Five). 

The government agrees with Johnson, and so do we.

The parties nominally view the issue under different 

conceptual frameworks. The government analyzes the issue as 

one of merger—i.e., whether a lesser-included offense merges 

with a greater offense. See Rutledge v. United States, 517 U.S. 

292, 305–06 (1996). Johnson characterizes the issue as one of 

multiplicity—i.e., whether one offense is repetitive of another. 

See United States v. Cooper, 886 F.3d 146, 153 (D.C. Cir. 

2018). Either conceptual formulation implicates the Double

Jeopardy Clause’s prohibition against “multiple punishments 
6

for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 

717 (1969). And the parties agree that, regardless of the 

conceptual framework, the question to be asked is ultimately 

the same: “whether each [offense] requires proof of a fact 

which the other does not.” Blockburger v. United States, 284 

U.S. 299, 304 (1932); see United States v. Weathers, 186 F.3d 

948, 951 (D.C. Cir. 1999). In other words, if one offense does 

not require proof of any facts beyond what is required to prove 

a second offense, a conviction of the first offense would be 

impermissibly duplicative of a conviction of the second.

Here, as Johnson contends and the government concedes, 

Johnson’s federal possession charges (Counts One and Four), 

see 26 U.S.C. § 5861(d), did not require proof of any additional 

facts beyond that required to prove his guilt on his federal 

manufacturing charges (Counts Two and Five), see id. §§ 5822, 

5861(f). Johnson’s convictions on Counts One and Four thus 

must be vacated.

B.

We next consider Johnson’s contention that his two D.C. 

law convictions for possession of a weapon of mass destruction 

are multiplicitous of each other. Each of those two counts is 

tied to one of the two modified 37mm shell IEDs discovered in 

the cardboard boxes found in Johnson’s home.

Johnson’s multiplicity challenge regarding those D.C. law 

counts, like his multiplicity challenge regarding the federal 

possession and manufacturing counts, concerns the Double 

Jeopardy Clause’s bar against multiple punishments for the 

same offense. But the two challenges differ in the following 

respect: the challenge to the federal convictions asks whether 

two charges arising under different federal statutes are 

duplicative of one another, whereas the challenge to the D.C. 
7

convictions asks whether two ostensibly distinct violations of 

the same D.C. statute are duplicative of one another. And 

“[w]here two violations of the same statute rather than two 

violations of different statutes are charged, courts determine 

whether a single offense is involved not by applying the 

Blockburger test, but by asking what act the legislature 

intended as the ‘unit of prosecution’ under the statute.” 

Weathers, 186 F.3d at 952.

Here, the relevant statute is D.C. Code § 22-3154(a), 

which bars possessing weapons of mass destruction. If the unit 

of prosecution under that statute is possession, then Johnson’s 

two convictions were multiplicitous because there was only 

one act of possession—that is, a single, simultaneous

possession of two IEDs. If, on the other hand, the unit of 

prosecution is the weapon, then Johnson’s two convictions 

were not multiplicitous because there were two IEDs in his 

possession. We review the question of multiplicity de novo, 

Cooper, 886 F3d at 152, despite Johnson’s failure to raise it at 

or before trial, because the government has not made, and 

therefore forfeits, any forfeiture argument, see United States v. 

Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996).

Identifying the unit of prosecution under D.C. Code § 22-

3154(a) requires us to interpret the D.C. Code, and it is the 

province the D.C. Court of Appeals to determine the meaning 

of D.C. Code provisions. See Abbas v. Foreign Pol’y Grp., 

LLC, 783 F.3d 1328, 1335 & n.3 (D.C. Cir. 2015). We thus 

aim “to achieve the same outcome we believe would result if 

the District of Columbia Court of Appeals considered this 

case.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 

907 (D.C. Cir. 2006). The question for us, then, is how would 

the D.C. Court of Appeals view the application of D.C. Code 

§ 22-3154(a) to circumstances involving possession of two of 
8

the same weapon, at the same time, and in the same place: is 

that one violation of the statute or two?

The D.C. Court of Appeals has issued a line of decisions 

addressing fundamentally the same issue in closely comparable 

situations. Like this case, each of those decisions addressed a 

statute prohibiting possession of some sort of item, and the 

circumstances involved a defendant’s possession of more than 

one of the prohibited items at the same time and in essentially 

the same place.

In the first case, Cormier v. United States, 137 A.2d 212 

(D.C. 1957), the defendant simultaneously carried two pistols 

in his pockets, and he was charged with, and convicted of, two 

counts of possessing a pistol without a license. Id. at 213. The 

D.C. Court of Appeals, however, held that he had committed 

only one offense, not two. Id. at 217. According to the court, 

“[n]othing in the statutes defining the crime of carrying a pistol 

and fixing the punishment discloses that Congresses intended 

that there be multiple prosecutions in the type of situation 

presented here.” Id. The court observed that the “problem is 

doubtful,” and held that it “must resolve that doubt in favor of

[the defendant].” Id.

The D.C. Court of Appeals later ruled the same way in 

Briscoe v. United States, 528 A.2d 1243 (D.C. 1987). There, 

the defendant concurrently possessed PCP-laced marijuana in 

a kitchen trash bag and untreated marijuana in a bedroom. Id. 

at 1244. He was charged with two counts of possessing 

marijuana with intent to distribute it, with one count concerning 

the marijuana found in the kitchen and the other count 

concerning the marijuana found in the bedroom. The court 

sought to “determine whether the Council of the District of 

Columbia intended to permit multiple punishments for 

possession of the same drug at the same time and at 
9

approximately the same place.” Id. at 1245. The court 

emphasized that “the applicable language of the statute 

criminalizes ‘possession,’ which is more appropriately 

described as a course of conduct than an act.” Id. at 1246. The 

court held that, when the defendant’s “constructive possession 

occurred at the same time in his apartment, multiple 

punishments are not authorized.” Id.

The D.C. Court of Appeals again confronted the same sort 

of issue in Bean v. United States, 576 A.2d 187 (D.C. 1990), 

and again reached the same result. The defendant was found 

in possession of both a knife and rifle in his car, and he was 

charged with two counts of violating a statute barring carrying 

either a pistol without a license or a dangerous weapon capable 

of being concealed. Id. at 188. The court invoked the principle 

espoused in Cormier that, “in the absence of clear legislative 

intent, any doubt as to whether a single statute creates a single 

or multiple offense will be resolved against turning a single 

transaction into multiple offenses.” Id. at 190 (internal 

quotation marks omitted). The court saw “nothing in the 

relevant language of the statute . . . to indicate that [multiple] 

convictions are allowed” in the circumstances. Id.

While Cormier, Briscoe, and Bean each ruled against 

multiple convictions in circumstances involving simultaneous 

possession of two prohibited items in the same place, the D.C. 

Court of Appeals subsequently reached a different conclusion 

in Hammond v. United States, 77 A.3d 964 (D.C. 2013). There, 

the defendant was found in possession of two rifles in his car. 

Id. at 966. Significantly, he was charged with two counts of 

possessing an unregistered firearm. The court held that “the 

unit of prosecution under the statute is each individual 

unregistered firearm.” Id. at 967. The court emphasized that 

“the statute’s plain language defines the unit of prosecution as 

‘the firearm’ that is possessed, but not validly registered.” Id. 
10

at 967–68 (quoting D.C. Code § 7-2502.01 (2001)). And the 

court explained that “the statute’s clear purpose,” achieved 

through a complex registration scheme, “is to collect 

information on each firearm possessed in the District of 

Columbia in order to be able to identify and track that firearm.” 

Id. at 968.

This case is of a piece with Cormier, Briscoe, and Bean, 

and materially differs from Hammond. In circumstances like 

the ones in this case, the D.C. Court of Appeals generally asks 

whether “the legislature expressed a clear intention in the 

language of [the relevant statute] that does allow multiple 

convictions.” Bean, 576 A.2d at 190 (discussing Cormier). As 

in Cormier, Briscoe, and Bean—and unlike in Hammond—the

statute at issue in this case contains no such clear indication.

The statute reads as follows: “A person who . . . possesses 

a weapon of mass destruction capable of causing multiple 

deaths, serious bodily injuries to multiple persons, or massive 

destruction of property may, upon conviction, be punished by 

imprisonment for life.” D.C. Code § 22-3154(a). That 

language contains no clear indication of an intention to allow 

multiple convictions for possession of two of the same devices 

in the same place at the same time. To the contrary, the 

possibility of a life sentence for a single act of possession raises 

the question whether multiple convictions for multiple 

weapons would serve a meaningful purpose.

If anything, the statutory language is less amenable to a 

conclusion that the unit of prosecution is each weapon (as 

opposed to each act of possession) than was the statute in Bean

in the circumstances of that case. The law in Bean prohibited 

“carry[ing] . . . [outside the home] a pistol, without a license 

therefor issued as hereinafter provided, or any deadly or 

dangerous weapon capable of being . . . concealed.” 576 A.2d 
11

at 188–89 (quoting D.C. Code § 22-3204 (1989)). The Bean 

court rejected the idea that simultaneous possession of a 

firearm and a knife supported multiple prosecutions, even 

though the statutory text separately referenced each of those

items (“pistol, without a license,” on one hand, and “deadly or 

dangerous weapon, capable of being . . . concealed,” on the 

other hand). Here, the statute refers generally to “a weapon of 

mass destruction,” and that language covers both IEDs 

possessed by Johnson.

Hammond is markedly distinct for reasons emphasized by 

the D.C. Court of Appeals in that decision. In holding that the 

unit of prosecution was each firearm, Hammond, as noted, 

stressed that the statute referred to the prohibited items 

(unregistered firearms) with a definite article—i.e., “the

firearm.” Hammond, 77 A.3d at 967 (quoting D.C. Code § 7-

2502.01 (2001)). The statute in this case, like those in Cormier, 

Briscoe, and Bean, contrastingly refers to the prohibited items 

with the indefinite article “a.” See D.C. Code § 22-3154(a); 

Bean, 576 A.2d at 188–89; Briscoe, 528 A.2d at 1245; 

Cormier, 137 A.2d at 213 n.1 (same statute as Bean). And that 

textual difference embodies a fundamental difference in the 

statutory purpose: the object of the statute in Hammond was to 

enable identifying, tracking, and “collect[ing] information on 

each firearm possessed in the District of Columbia,” which 

meant that “the unit of prosecution must be each individual 

non-registered firearm in order to give effect to the legislature’s 

intent.” Hammond, 77 A.2d at 968. There is no comparable 

indication in this case—nor was there in Cormier, Briscoe, or 

Bean—of a distinct legislative purpose connected to each 

possessed item.

The government cites legislative history indicating that the 

statute in this case aims “to provide for the stronger penalty 

allowable for this crime if the weapon found in a defendant’s 
12

possession is truly capable of an act of terrorism.” Comm. On 

Judiciary of D.C., Report: Bill 14-373, the “Omnibus AntiTerrorism Act of 2002,” at 18 (2002), https://lims.

dccouncil.us/downloads/LIMS/10484/Committee_Report/B14

-0373-CommitteeReport1.pdf. But while that history indicates 

that the weapons covered by the statute—as a class—are 

capable of mass destruction, it does not indicate a separate 

legislative purpose connected to each distinct weapon in the 

manner of the registration scheme in Hammond. Rather, the 

legislative history cited by the government here resembles the 

legislative purpose considered in Bean, where the statute in 

question “intended to ‘drastically tighten the ban on carrying 

dangerous weapons.’” 576 A.2d at 190 (quoting Bruce v. 

United States, 471 A.2d 1005, 1007 (D.C. 1984)). The Bean 

court concluded that the statute did not support multiple 

convictions for possession of two weapons at the same time 

and in the same place. The same conclusion obtains here.

In short, consistent with the D.C. Court of Appeals’s 

decisions in Cormier, Briscoe, and Bean, one of Johnson’s two 

D.C. law possession convictions must be vacated as 

multiplicitous.

C.

Johnson also challenges the district court’s decision to bar 

Johnson’s counsel from suggesting in closing argument that 

Agent Campbell had tampered with evidence. We review the 

trial court’s decision for abuse of discretion, United States v. 

Borda, 848 F.3d 1044, 1062 (D.C. Cir. 2017), mindful of the 

district court’s broad discretion in the area and superior vantage 

point from which to assess the evidence, see United States v. 

Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992). “Abuse of 

discretion will only be found where the District Court’s ruling 

prevented defense counsel from making an essential point.” 
13

Borda, 848 F.3d at 1062–63 (citing Hoffman, 964 F.2d at 24). 

While “defense attorneys must be permitted to argue all 

reasonable inferences from the facts in the record,” counsel 

may not “premise arguments on evidence which has not been 

admitted” or “make statements as to facts not proven.” 

Hoffman, 964 F.2d at 24 (alteration omitted) (quoting Johnson 

v. United States, 347 F.2d 803, 805 (D.C. Cir. 1965); then 

quoting United States v. Latimer, 511 F.2d 498, 503 (10th Cir. 

1975)).

Johnson argues that, contrary to the district court’s finding, 

the jury reasonably could have inferred that Campbell 

tampered with the physical evidence in his case. The evidence 

that Johnson believes supports that inference is: “that Agent 

Campbell alone disassembled the purported weapon, that he 

had not videotaped the disassembly, and that he had in the past 

been criticized by a federal court for exaggerating the state of 

evidence in a case, like this one, involving explosive devices.” 

Appellant Reply Br. 15–16.

We cannot say that the district court abused its discretion 

in determining that “[t]here [wa]s nothing about Campbell’s 

history, . . . nothing about the evidence in this case that 

indicate[d] that Agent Campbell did anything to it, put it there, 

planted it, changed it, did anything with it.” Trial Tr. 1321:12–

15, J.A. 299. The court reasonably distinguished between 

suggesting that Agent Campbell was untruthful, which was 

supported by the Kentucky judge’s criticism of him, and 

suggesting that he had actively tampered with the evidence, 

which was not. The fact that Campbell disassembled the 

devices without videotaping himself does not support an 

inference of any misconduct, let alone of tampering, especially 

when the defense introduced no evidence that Campbell’s 

actions in that regard deviated from standard procedure. Cf.

United States v. Stubblefield, 643 F.3d 291, 295 (D.C. Cir. 
14

2011) (affirming district court’s refusal to permit defense 

counsel to argue that photo array did not conform to “best 

practices” when counsel had not introduced evidence 

establishing such practices). Additionally, all the materials 

needed to convert 37mm shells into IEDs were found in 

Johnson’s home, and one of the shells was initially identified 

as a possible IED by someone other than Agent Campbell.

D.

Fourth and finally, we consider Johnson’s claim that his 

trial counsel rendered constitutionally ineffective assistance. 

Johnson contends that he would have accepted the 

government’s proposed plea agreement if his counsel had 

informed him that Johnson’s preferred defense would not be 

mounted at trial. Johnson and the government agree that the 

claim should be remanded to the district court for further 

proceedings. We agree as well.

“Due to the fact-intensive nature of the [ineffectiveassistance-of-counsel] inquiry and the likelihood, when a 

defendant asserts his sixth amendment claim for the first time 

on direct appeal, that the relevant facts will not be part of the 

trial record, this court’s ‘general practice is to remand the 

claim . . .’ unless ‘the trial record alone conclusively shows’ 

that the defendant either is or is not entitled to relief.” United 

States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir. 2003) 

(citation omitted) (quoting United States v. Fennell, 53 F.3d 

1296, 1303–04 (D.C. Cir. 1995)). Here, the trial record alone 

cannot resolve Johnson’s claim: the existing record does not 

shed light on Johnson’s discussions with his trial counsel about 

the defense Johnson wished to present or on Johnson’s thinking 

in rejecting the government’s proposed plea agreement.
15

* * * * *

For the foregoing reasons, we remand to the district court 

to vacate Counts One and Four, to vacate either Count Three or 

Count Six, and to hold further proceedings on Johnson’s claim 

that his trial counsel rendered constitutionally ineffective 

assistance. We otherwise affirm the judgment of the district 

court.

So ordered.